Laumer lives to fight another day, but stay tuned . . . en banc review may be on the horizon

William McCorkle and Andre Clinkscale v. United States, Nos. 11-CF-1667 and 11-CF-1668 (decided September 25, 2014).

Players:  Associate Judge Fisher, Chief Judge Washington, and Senior Judge Ruiz.  Opinion by Judge Fisher.  PDS for Mr. McCorkle.  Andrew R. Szekely for Mr. Clinkscale.  Trial Judge Lynn Leibovitz.

Facts:  This triple homicide stemmed from an altercation after Mr. McCorkle cut in front of the decedent in a line at a gas station.  Mr. McCorkle testified that as he fled the scene, he saw Trey Joyner, a friend of his, firing into the decedent’s car.  Mr. Joyner had died by the time of the trial.  At trial, Mr. McCorkle and Mr. Clinkscale sought to admit the testimony of Tywon Hager, who was prepared to testify that he had heard Mr. Joyner admitting, against his penal interest, to participating in the killings. The defendants sought to admit this hearsay statement as a statement against penal interest, so the trial court analyzed its admissibility under Laumer v. United States, 409 A.2d 190 (D.C. 1979) (en banc).  

The first prong of the Laumer test requires the trial judge to assess the credibility of the witness to determine whether the out-of-court declarant in fact made the statement.  Noting Mr. Hager’s “significant” record of impeachable convictions, close relationship with the accused, and failure to mention the statement by Mr. Joyner in an earlier interview with police, the trial court ruled that the proffered hearsay statement was never made, and that Mr. Hager’s testimony on this point was therefore inadmissible.  Slip op. at 13 & n.6. 

Issue: Whether the first prong of Laumer v. United States, 409 A.2d 190 (D.C. 1979) (en banc), which requires a trial court to assess the veracity of a witness who has been offered to repeat an out-of-court statement against penal interest, unconstitutionally invades the province of the jury and has been implicitly overruled.

Holding: No. 

Of Note:

• While Judge Fisher explained in a concurring opinion that he continues to believe the Laumer approach correctly allows the trial court to exclude unreliable evidence, Senior Judge Washington and Chief Judge Washington wrote separate concurrences calling for en banc reconsideration of the first prong of Laumer.

• The DCCA acknowledged that a recent amendment to the Federal Rules of Evidence states that the judge may not base admission or exclusion of a hearsay statement on the court’s assessment of the testifying witness’s credibility, and that the Laumer approach requiring the trial court to assess the credibility of the in-court witness represents a minority view.  See Slip op. at 8-9.

• Footnote 8 may be useful in getting better curative instructions during trial.  Trial judges are often reluctant to tell a jury a fact as part of a curative instruction, and prefer to give the lukewarm “there has been no evidence that” (which suggests that while the damaging information may be true, the jury hasn’t heard evidence of it).  This footnote may be useful to show trial judges that the DCCA thinks the more direct route is not only allowed, but preferable.  It reads: “The trial judge instructed that ‘[y]ou have heard evidence that a person named Trey Joyner is no longer alive.  There is no evidence that either defendant or anyone associated with either defendant ever played a role in Mr. Joyner’s death.’  Perhaps it would have been clearer to say:  ‘Neither defendant nor anyone associated with them had anything to do with the death of Mr. Joyner.’”  Slip op. at 20 n.8.  JF & NG

Read full opinion here.